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Proposal would shift burden of proof in self-defense cases
KEITH ARNOLD
Special to the Legal News
Published: August 23, 2017
A lawmaker duo looks to update Ohio firearms laws in a measure introduced in the Ohio Senate last week.
Republican Sens. Joe Uecker and Jay Hottinger of Loveland and Newark, respectively, forwarded Senate Bill 180 as a means of modernizing elements of state gun laws and provisions of so-called concealed carry laws.
The bill's aim is twofold, Uecker said to prospective Senate cosponsors.
"It will protect 2nd Amendment rights while also addressing concerns raised by many of our constituents," he said.
Perhaps most notably, SB 180 modifies the affirmative defense of firearms law.
Under current law, when a person acts in self-defense, that individual is guilty until their innocence is proven, Uecker posited.
SB 180 would shift the legal burden of proof onto prosecutors of a given case, requiring presentation of evidence contrary to a defendant's self-defense claim.
The bill also removes the third prong of a test incorporated into Ohio criminal law by the Supreme Court of Ohio's holding in State v. Melchior in 1978.
Melchior - and current law - have required the following in cases of self defense:
(1) The individual who defended himself, also known as the slayer, was not at fault in creating the situation giving rise to the affray.
(2) The slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force.
(3) The slayer must not have violated any duty to retreat or avoid the danger.
According to Uecker's bill, there would no longer be a duty to retreat.
"The other points remain unchanged," he said.
Two additional provisions of SB 180 modify elements of the state's concealed handgun license laws.
Current law requires license holders to keep their hands in plain sight. The lawmakers, however, cite case law that holds there is no such thing as "in plain sight" in a vehicle.
Compounding the issue, statute prohibits a concealed handgun licensee from exiting the vehicle.
SB 180 would add language that requires a licensee to keep their hands in plain sight "unless impractical" or "directed otherwise by a law enforcement officer."
Finally, the bill would eliminate the signage that has been a requirement of concealed carry law.
"Last session, the legislature revised the locations where a concealed handgun license holder can carry their firearm, but we neglected to allow those locations to remove the required signs," Uecker said. "This bill corrects this oversight by eliminating their requirement to post the no weapon sign.
"It does not require that they be removed if they are already in place and those responsible choose to continue to restrict firearms on their premises."
The senators cosponsor request succeeded in attracting the support of three fellow cosponsors.
SB 180 awaits committee referral once lawmakers return from summer recess.
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